Vans Inc. Usa vs Fateh Chand Bhansali And Ors.

Manmohan Singh, J

M/s. Vans Inc. USA, 6550 Katella Avenue, Cypress, California 90630, USA has filed the Cancellation Petition before the Board for removal of impugned trademark 'IVANS' registered under No. 1109073 in Class 25 in the name of FATEH CHAND BHANSALI, trading as PAWAN TRADING CO., IX/6482, Nehru Gali, Gandhi Nagar, Delhi-110031 from the Register or rectification of the register under Section 47/57/125 of the Trade Marks Act, 1999.

By this Order, we propose to decide the M.P. for seeking the interim relief. None has appeared from Respondent No. 1.

The main appeal is listed for hearing.

The counsel for the applicant has pressed for interim orders. He has relied upon facts stated in para 1 to 25 of the ground of appeal as well as ground 10(c), which is read as under:

"BECAUSE the "examination" of the impugned mark/registration has been faulty as the Examiner of Trademarks has not cited the petitioner's marks which are prior registered and/or applied. These registrations and/or applications of the petitioner/applicant are prior and superior to the impugned registration, application of the respondent No. 1.

Reliance is placed on the decision passed by the Intellectual Property Appellate Board in Jahangir Biri Factory Pvt. Ltd. vs. Mohd. Dildar Hussain (Proprietor) and Ors. 2018 (76) PTC 479 (IPAB)] wherein it was held that:-

"21. It is clear that there is a lapse on the part of the respondent No. 2 in Examiner Report. We failed to understand why the registered trade mark and pending applications have been ignored by the respondent No. 2. Had the said trademarks and pending applications of the applicant been referred in the Examiner Report, the application of the respondent No. 1 ought not to have been allowed. Despite of grave lapse on the part of respondent No. 2, the application of the respondent No. 1 was proceeded further and the same was registered. The respondent No. 2 has even after acceptance of mark (if wrongly) has got the power to withdraw the acceptance in case of an error in view of the mandatory provision of section 19 of the Act, the said provision is read as under:........."

"10. From the above, it is clear to us that the present case, evidently there is violation of provisions of trademark act and rules in granting the registration of trademark HOWRAH BIRI 202 under No. 1760000 to the Respondent was not proper. The mandatory provision the Act and Rules cannot be ignored by the respondents. It is clarify that in the present order, we are not deciding the issue of ownership of the mark in favour of either party. In petition is being decided purely on the basis of a valid objection, taken by the respondent No. 1 therefore, we are deciding the same."

In view of above, we allow the interim application. Till the appeal is finally decided, the operation of impugned registration No. 1109073 in Class 25 shall remain stayed. M.P. disposed of.